Trewin v Felton [2007] NSWSC 919

New South Wales Supreme Court

CITATION : Trewin v Felton [2007] NSWSC 919

HEARING DATE(S) : 14 May 2007 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 14 May 2007

DECISION : Notice under s 67 dispensed with. Hearsay evidence admitted where maker of previous representation deceased.

CATCHWORDS : EVIDENCE – affidavits – late service – where reasonable opportunity to investigate and respond denied. - EVIDENCE – hearsay – exceptions – notice under Evidence Act s 67 – dispensing with notice.

(NSW) Conveyancing Act 1919 s 89 LEGISLATION CITED : (NSW) Evidence Act 1995 ss 63, 67 (NSW) Evidence Regulation 1995 cl 4

CASES CITED : Perpetual Trustee Co Limited v Westfield Management Limited [2006] NSWCA 337

Audrey Trewin (first plaintiff) PARTIES : Stephen Albert Trewin (second plaintiff) Graeme John Felton (defendant)

FILE NUMBER(S) : SC 3832/05

COUNSEL : Ms P Lane (plaintiffs) Mr I Mescher w Ms A Horvath (defendant)

SOLICITORS : Crane Butcher McKinnon Lawyers (plaintiffs) R I McBroom, Solicitor (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Monday, 14 May 2007

3832/05 Audrey Trewin and Anor v Graeme Felton JUDGMENT (ex tempore) 1 HIS HONOUR: The defendant tenders a statutory declaration of Ivan Matthew Wall, the former owner of the land which is now subdivided into the plaintiffs' and the defendant's land, which statutory declaration was made on 14 May 2004. It is common ground that Mr Wall is since deceased, and is therefore "not available" within the meaning of (NSW) Evidence Act 1995, s 63(1). Although no such formal notice as is required by Evidence Act, s 67, has been given of the intention to rely on his statutory declaration, that intention was otherwise manifest from its annexure to Mr Felton's affidavit, and Ms Lane for the plaintiff, very fairly, does not complain of any prejudice, the absence of which is apparent from the circumstance that the plaintiffs have themselves served hearsay evidence of Mr Wall in response to that tendered by the defendant. 2 That is not to suggest, for a moment, that it will always, or even usually, be sufficient to obtain an order dispensing with notice under s 67 that the evidence has been referred to in or annexed to affidavits served in the case. One particular reason for that is that the notice required by s 67 and (NSW) Evidence Regulation 1995, cl 4, includes notification of the substance of all other relevant representations that have been made by the maker of the representation, a requirement that will not normally be satisfied by the mere service of an affidavit annexing or setting out those representations on which one party seeks to rely. But it was not suggested that that gives rise to any relevant disadvantage in this case.